Chapter 2.37 — ALTERNATIVE DELIVERY METHOD PROCUREMENT

The purpose of this chapter is to provide definitions and guidelines for the award, use and evaluation of alternative delivery method contracts. The intent of this chapter is to set forth the requirements, including the competitive process the city will follow whenever it awards an “alternative delivery method” contract. (Ord. 1181 § 3 (part), 2013)

“Alternative delivery method” means a process of selecting a contracting team for design and construction using the design-build, design-assist or integrated project delivery methods for the construction of a public works project pursuant to a competitive negotiation process to establish the best value.

“Alternative delivery method contract” means a contract between the city and an alternative delivery method entity to furnish services as required for a given public works project.

“Alternative delivery method entity” means the entity (whether natural person, partnership, joint venture, corporation, business association, or other legal entity) that proposes to enter into a contract with the city for delivery of any public works project under the procedures of this chapter.

“Alternative delivery method entity member” (sometimes referenced as “member”) means any natural person, partnership, joint venture, corporation, business association or other legal entity who provides licensed contracting, architectural or engineering services for the alternative delivery method entity.

“Awarding entity” means the city council when referencing procurement for the city or for any department of the city.

“Best value” means a value determined by stated criteria that may include, but is not limited to, price, features, functions, life-cycle costs, experience and other criteria deemed appropriate by the city department.

“City department” means the city department utilizing the alternative delivery method process.

“Competitive negotiation” means a competitive sealed proposal procurement method which includes but is not limited to all of the following requirements: (1) generally describes the services sought to be procured by the city, (2) sets forth minimum criteria for evaluating proposals submitted in response to a request for proposals/qualifications, (3) generally describes the format and content of proposals/qualifications to be submitted, (4) provides for negotiation of scope and price and (5) describes the factors to be used in evaluating proposals.

“Director” means the director of the city department primarily responsible for managing and administering an alternative delivery method contract pursuant to the provisions of this chapter.

“Performance criteria” means the requirements for the public works project, including, as appropriate, capacity, durability, production standards, ingress and egress requirements, or other criteria for the intended use of the public works project, expressed in conceptual documents, performance-oriented preliminary drawings, outline specifications and other documents provided to the alternative delivery method entity by the city department establishing the project’s basic elements and scale, and their relationship to the work site suitable to allow the alternative delivery method entity to make a proposal.

“Performance criteria developer” means the design professional assisting with the development of the request for proposals/qualifications and performance criteria, who is duly licensed by the state of California.

“Project procedures manual” means the guidance manual for all alternative delivery method projects which includes the components of the scope of work, proposal requirements, contract provisions, selection criteria and selection process. This document shall be prepared and amended from time to time as set forth by the city manager or his or her designee.

“Proposal” means an offer to enter into an alternative delivery method contract, as further defined in this chapter.

“Public works project” shall have the same meaning as defined in Section 2.36.030.

“Request for proposals” means the document or publication whereby a city department solicits proposals for an alternative delivery method contract. (Ord. 1181 § 3 (part), 2013)

For purposes of this chapter only, prior to procuring an alternative delivery method contract, the city department shall prepare a request for proposals containing, at minimum, the following elements:

A. The procedures to be followed for submitting proposals.

B. The proposed terms and conditions for the alternative delivery method contract.

C. The performance criteria.

D. A description of the project approach, work plan and/or other submittals to be submitted
with the proposal.

E. A schedule for planned commencement and completion of the alternative delivery method
public works project.

F. The minimum qualifications that the alternative delivery method entity will be required to
possess to be deemed responsive.

G. Any other relevant information that the city department in its discretion may choose to
supply.
(Ord. 1181 § 3 (part), 2013)

Performance criteria for purposes of the request for proposals and additional scope refinements shall be prepared by the city department or the performance criteria developer. The performance criteria developer shall be disqualified from submitting a proposal to enter into the alternative delivery method contract as an alternative delivery method entity or as a subcontractor or team member of an alternative delivery method entity. The alternative delivery method entity shall not be permitted to delegate services under the alternative delivery method contract to the performance criteria developer.

The city department, in consultation with the performance criteria developer, shall determine the scope and level of detail required for the performance criteria. The performance criteria shall be detailed enough to permit qualified alternative delivery method entities to submit proposals in accordance with the request for proposals, given the nature of the alternative delivery method public works project and the level of design to be provided in the proposal. (Ord. 1181 § 3 (part), 2013)

Notice of request for proposals shall be advertised in the same manner in which formal bids generally are solicited for public works projects for the city. (Ord. 1181 § 3 (part), 2013)

The city department may establish a prequalification process for alternative delivery method entities on a project by project basis that specifies the prequalification criteria, standardized questionnaire and the manner in which the alternative delivery method entities will be selected. (Ord. 1181 § 3 (part), 2013)

Where the city department determines that prequalification is in the best interest of the city and project delivery, at a best value, it may, prior to receipt of proposals, seek information in order to evaluate qualifications. Qualification may include any of the following criteria, without limitation, to be supplied by an alternative delivery method entity:

A. Submission of documentation establishing that the alternative delivery method entity
proposing to enter into the alternative delivery method contract (1) is a licensed contractor
(Class A, B, or C, as specified in the request for proposals) and either holds an engineering
or architect license (as required by the request for proposals) or subcontracts that required
license, or (2) is a licensed engineer or architect (as specified in the request for proposals)
and either holds or subcontracts a contractor’s license (Class A, B, or C, as specified in the
request for proposals).

B. Submission of documentation establishing that the alternative delivery method entity or its
members have completed projects of similar size, scope, structure or building type, or
complexity, and that proposed key personnel have sufficient experience and training to
competently manage and complete the design and construction of the alternative delivery
method public works project.

C. Submission of a proposed project management plan establishing that the alternative
delivery method entity or its members have the experience, competence, and capacity
needed to effectively complete the alternative delivery method public works project on
schedule.

D. Submission of documentation establishing that the alternative delivery method entity has
the capacity to obtain all required payment and performance bonding, liability insurance,
and errors and omissions insurance, as well as a financial statement assuring the city that
the alternative delivery method entity has the capacity to complete the alternative delivery
method public works project.

E. Provision of a declaration that neither the alternative delivery method entity, nor any of its
members, under its current or former name, has had a surety company complete any project
within the past five years.

F. Provision of a declaration providing detail for the past five years concerning all of the
following:

1. Civil, criminal, or administrative violations of the Occupational Safety and Health
Act against the alternative delivery method entity and/or any of its members.

2. Civil, criminal, or administrative violations of the contractors’ state license law against the alternative delivery method entity and/or any of its members. 3. Conviction of or any written accusations by a government entity of the alternative delivery method entity and/or any of its members for submitting a false or fraudulent claim to a public agency. 4. Civil, criminal, or administrative violations of federal or state law governing the payment of wages, benefits, or personal income tax withholding, or of Federal Insurance Contribution Act (FICA) withholding requirements, state disability insurance withholding requirements, or unemployment insurance payment requirements against the alternative delivery method entity and/or any of its members. For purposes of this subsection, only violations by the alternative delivery method entity and/or its members, as an employer, shall be deemed applicable, unless it is shown that the alternative delivery method entity and/or its member(s), as an employer, had knowledge of a subcontractor’s violation or failed to comply with the conditions set forth in Section 1775(b) of the State Labor Code. 5. Civil, criminal, or administrative violations of federal or state law against the alternative delivery method entity and/or any of its members governing equal opportunity employment, contracting or subcontracting. 6. Disbarment, disqualification, or removal from a federal, state or local government public works project. 7. Bankruptcy or receivership of the alternative delivery method entity and/or any of its members. 8. All settled adverse claims, disputes or lawsuits between the owner of a public works project and the alternative delivery method entity and/or any of its members in which the claim, settlement or judgment exceeds fifty thousand dollars. G. Provision of a declaration that the alternative delivery method entity will comply with all other provisions of law applicable to the alternative delivery method public works project. The declaration shall state that reasonable diligence has been used in its preparation and that it is true and complete to the best of the signer’s knowledge. H. Other information related to a project designed to assess the qualification of the prospective alternative delivery method entity. At its sole discretion, the city department may, in lieu of prequalification, require qualification information to be provided as part of the proposals. (Ord. 1181 § 3 (part), 2013)

The information concerning the design-build entity’s qualifications and experience shall be verified under oath by the alternative delivery method entity and its members. It is unlawful to submit any declaration under this chapter containing any material matter that is false. (Ord. 1181 § 3 (part), 2013)

Proposals may be withdrawn by written notice to the city department for any reason at any time prior to the deadline set forth in the RFP and the proposal guarantee for the proposal shall be returned. Timely withdrawal of a proposal shall not prejudice the right of an alternative delivery method entity to timely file a new proposal. (Ord. 1181 § 3 (part), 2013)

All proposals shall be accompanied by a proposal guarantee in the form of a cashier’s check or certified check made payable to the city of Folsom, or a bond executed by a surety admitted to engage in such business in the state of California, or other similar security as approved by the city manager and city attorney, for an amount equal to ten percent of the amount of the proposal and no proposal shall be considered unless such proposal guarantee is timely provided. The proposal guarantee shall be forfeited if the proposal is withdrawn beyond the deadline set forth in the RFP, or if the proposal is accepted but the alternative delivery method entity fails to execute the alternative delivery method contract. (Ord. 1181 § 3 (part), 2013)

A. Proposals received shall be submitted to the performance criteria developer prior to review by the selection committee, as defined in Section 2.37.120. The performance criteria developer may seek clarification from the proposed alternative delivery method entities to ensure proposals are responsive to the RFP. No proposal shall be considered if the proposal is not consistent with the information required by the request for proposals.

B. The city department may conduct a phased solicitation process. In the event of a phased
solicitation process, draft proposals, without cost or fee information, will be submitted for
review to the performance criteria developer, who then may meet with each alternative
delivery method entity to discuss its draft proposal and/or otherwise seek clarification of
the draft proposal. Following review of the draft proposals, final proposals will be
submitted, which shall contain all information required in the request for proposals,
including cost and fee information. Final proposals shall be submitted as set forth in
subsection A of this section.

C. Adequate precautions shall be taken to insure that information gleaned from competing
proposals is not disclosed to other proposers. Prices and other information contained in the
proposals shall not be disclosed until a recommendation for award is made to the awarding
authority. All proposals received shall become a matter of public record and shall be
regarded as public, with the exception of those elements of each proposal which are
identified by a proposer as business trade secrets and plainly marked “Trade Secret,”
“Confidential” or “Proprietary.” If disclosure is required or permitted under the California

Public Records Act or otherwise by law, the city shall in no way be liable or responsible
for the disclosure of any such records or any part thereof.
(Ord. 1181 § 3 (part), 2013)

The city department, with concurrence of the city manager, shall appoint a selection committee to review and rank the proposals of the alternative delivery method entities. The selection committee shall use the evaluation criteria set forth in this chapter and the applicable request for proposals in its review of the proposals. The composition of the committee shall be within the discretion of the city department and may include, but not be limited to: members of department administration or staff, the performance criteria developer, any person having special expertise relevant to selection of an alternative delivery method entity (design or construction experience) and/or other as determined by the city manager. No person interested or affiliated with any entity submitting a proposal shall participate on the selection committee. (Ord. 1181 § 3 (part), 2013)

The following method shall be utilized in selecting an alternative delivery method entity for award of an alternative delivery method contract:

A. Criteria utilized may include, but not be limited to:

1. An evaluation of overall quality, capability, resource availability and financial
stability of the alternative delivery method entity.

2. An evaluation of references provided with respect to responsiveness, quality of work,
timeliness and overall performance.

3. An evaluation of the alternative delivery method entity members’ experience, training
and qualifications.

4. Consideration of items such as proposed design approach, initial and/or life cycle
costs, project features, quality, capacity, schedule, and operational and functional
performance of the facility.

5. The extent to which the alternative delivery method entity’s proposal meets the
performance criteria and other requirements set forth in the request for proposals.

6. Analysis of the cost/fee schedule to the alternative delivery method entity’s ability to
meet the performance criteria and other requirements set forth in the request for
proposals.

7. Whether the cost/fee schedule as provided in the proposal is guaranteed firm,
evidenced in writing and signed by an authorized representative of the alternative
delivery method entity.

8. The alternative delivery method entity’s cost/fee proposal and proposal for additions
or deletions for the public works projects.

9. The percentage of the work that is to be performed by the alternative delivery method
entity and the sub-contractors that can be identified at the time the proposal is submitted.

B. Depending on the number of proposals received, the city department or the selection
committee may develop a “short list” of top ranked alternative delivery method entities.

C. The city department or selection committee may require “short listed” alternative delivery
method entities to submit to an interview and/or make a presentation to establish a final
ranking.

D. The city department or selection committee will negotiate with the top ranked alternative
delivery method entity. The negotiations may include but not be limited to project costs/fee
schedule, scope, and schedule. If negotiations are unsuccessful, negotiations will cease
with the top ranked alternative delivery method entity and may begin with the next highest
ranked alternative delivery method entity.

E. Award shall be made by the awarding entity to the alternative delivery method entity whose
proposal is judged as providing the best value to the city while meeting the objectives of
the alternative delivery method public works project.
(Ord. 1181 § 3 (part), 2013)

All alternative delivery method contracts shall be approved as to form by the city attorney. (Ord. 1181 § 3 (part), 2013)

Change orders to alternative delivery method contracts shall be subject to the limits and requirements set forth in the Folsom Municipal Code, as amended from time to time. (Ord. 1181 § 3 (part), 2013)

If the awarding entity awards an alternative delivery method contract, retention in an amount up to ten percent shall be withheld from progress payments, subject to the city’s right, in its sole discretion, to reduce retention to five percent and to permit progress payments for design services to be made without withholding retention. The city council may authorize a retention of up to ten percent upon determination that the project is substantially complex and a need exists for a retention of up to ten percent. (Ord. 1181 § 3 (part), 2013)

Nothing in this chapter shall require the city to accept any proposal and the city hereby reserves the right to reject any and all proposals. City assumes no responsibility for the costs incurred by any alternative delivery method entity in preparation of any proposal. (Ord. 1181 § 3 (part), 2013)

The city recognizes that the alternative delivery method entity is charged with performing both design and construction. Due to the fact that an alternative delivery method contract may be awarded prior to completion of the design, it is often impractical for the alternative delivery method entity to list all subcontractors at the time of award.

A. It is the intent of the city to establish a clear process for the selection and award of
subcontracts entered into pursuant to this chapter in a manner that retains protection for
subcontractors while enabling alternative delivery method public works projects to be
administered in an efficient manner.

B. All of the following requirements shall apply to subcontractors, licensed by the state of
California, that are employed on an alternative delivery method public works project
undertaken pursuant to this chapter.

1. The city department in each request for proposals shall specify the essential design
disciplines, construction trades or types of subcontractors that must be listed by the
alternative delivery method entity in the proposal.

2. Subcontractors not listed in the proposal shall be awarded subcontracts by the
alternative delivery method entity in accordance with a bidding process set forth in
the request for proposals. The alternative delivery method entity shall furnish to city
documentation verifying that all subcontractors not listed at the time of award were
subsequently awarded subcontracts in accordance with the process set forth in the
request for proposals. All subcontractors that are listed in the proposal or
subsequently awarded subcontracts shall be afforded the protection of all applicable
laws.

3. The city may require specific subcontracting trades to meet specified experience or
qualifications in order to become part of an alternate delivery method team.
(Ord. 1181 § 3 (part), 2013)

The alternative delivery method contract shall include a provision that requires the alternative delivery method entity to defend, indemnify and hold harmless the city and its officers, employees and agents from liability arising from the acts of the alternative delivery method entity members in connection with the performance of the alternative delivery method contract. (Ord. 1181 § 3 (part), 2013)

The provisions of this chapter are severable. If a court determines that a word, phrase, clause, sentence, paragraph, subsection, section, or other provision is invalid or that the application of any part of the provision to any person or circumstance is invalid, the remaining provisions and the application of those provisions to other persons or circumstances are not affected by that decision. (Ord. 1181 § 3 (part), 2013)